HASMUKHBHAI SHANTILAL MISTRY vs ASSESSMENT UNIT - INCOME TAX DEPARTMENT
- Court
- Gujarat High Court
C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12378 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
===================================================
Approved for Reporting Yes No
✔
===================================================
HASMUKHBHAI SHANTILAL MISTRY
Versus
ASSESSMENT UNIT - INCOME TAX DEPARTMENT
===================================================
Appearance:
MR VIJAY H PATEL(7361) for the Petitioner(s) No. 1
MR KARAN G SANGHANI(7945) for the Respondent(s) No. 1
===================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 19/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Heard learned advocate Mr.Vijay H. Patel for the
petitioner and learned Senior Standing Counsel Mr.Karan
Sanghani for the respondent.
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
2. This petition is filed under Article 226 of the Constitution
of India challenging the order under Section 148A(d) of the
Income Tax Act, 1961 (for short "the Act") dated 31.07.2022,
notice under Section 148 of the Act dated 31.07.2022 and
consequential reassessment proceedings under Section 147 of the
Act on the ground that the notice would be invalid and time
barred. The order under Section 147 of the Act was passed on
11.05.2023 which was challenged in Appeal before the
Commissioner of Income Tax (Appeals) [for short CIT(A)],
National Faceless Assessment Center (NFAC).
3. Brief facts of the case are that the respondent Assessing
Officer issued notice dated 31.07.2022 under Section 148 of the
Act for the Assessment Year 2016-2017 during the extended time
period as per Taxation and Other Laws (Relaxation of Certain
Provisions) Ordinance, 2020 (for short "TOLA").
4. In view of the decision of the Apex Court in the case of
Union of India Vs. Ashish Agarwal [2022] 138 taxmann.com 64 /
286 Taxman 183/ 444 ITR 1 (SC), the aforesaid notice was to be
treated as notice under Section 148A(b) of the Act, which has
come into statute with effect from 01.04.2021.
5. The Apex Court in the case of Union of India Vs. Rajeev
Bansal, [2024] 167 taxmann.com 70/301 Taxman 238/469 ITR 46
(SC) has laid down the law to consider such notice as valid
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
notice or invalid notice depending upon the surviving time left
between the date of issuance of notice under Section 148 of the
Act read with Section 3(1) of TOLA upto 30.06.2021 and the
issuance of notice under Section 148 of the Act pursuant to the
directions issued by the Apex Court in the case of Ashish
Agarwal (supra).
6. This Court in the case of Dhanraj Govindram Kella vs.
ITO, [2025] 177 taxmann.com 194 (Gujarat) (Judgment dated
08.07.2025 rendered in Special Civil Application No.6387 of
2023 and allied matters) has considered in detail the
submissions made by both the sides and held as under:-
"65. The alternative contention of the petitioner as to
whether notices would be valid notice or invalid notice
considering 'surviving time' between the date of the issuance of
th
notices under TOLA and 30 June, 2021 or not is required to be
considered and for that each matter has to be considered
separately on the basis of the facts of case considering the date of
issuance of notices under section 148 under TOLA by the
Revenue and thereafter date of supplying information to the
assessee and date of passing of order under section 148A(d) and
date of issuance of notice under section 148 of the Act so as to
consider whether issuance of notice under section 148 of the Act
is within 'surviving time' as per the direction of Hon'ble Apex
Court in case of Rajeev Bansal (supra) or not.
66. So far as Assessment Years 2013-2014 and 2014-2015
are concerned, the period of three years from the end of the
assessment year would be over prior to 20.03.2020 and the period
of six years would be over between 20.03.2020 and 30.06.2021.
Therefore, the notices issued under section 148 of the Act
under old regime between 01.04.2021 and 30.06.2021 as per
TOLA, will be a valid notice if the notice under section 148 of the
Act under new regime is issued within the period of 'surviving
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
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time' as per the directions issued by Hon'ble Apex Court in case of
Rajeev Bansal (supra). For the Assessment Years 2016-2017 and
2017-2018 are concerned, the notice issued under section 148 of
the Act under old regime between 01.04.2021 and 30.06.2021
under TOLA would be considered to be issued within three years
from the end of the relevant assessment year as three years would
complete within the period of 20.03.2020 and 30.06.2021.
67. Therefore, in facts of these petitions, following data is required
to be considered to find out 'surviving time' to decide as to
whether the impugned notices under section 148 of the Act issued
under the new regime as per the decision of Hon'ble Apex
Court in case of Ashish Agarwal (supra) would be valid notice or
not in view of the decision of the Hon'ble Apex Court in case of
Rajeev Bansal (supra):
SCA NO AY Date of notice
under section
148 under
TOLA
No of days
of surviving
time
available till
30.06.2021
Date of
providing
information
under
section
148A(b)
6387/2023 2013-2014 17.06.2021 13 26.05.2022
5688/2023 2014-2015 09.06.2021 21 23.05.2022
22260/2022 2016-2017 30.06.2021 1 23.05.2022
996/2023 2017-2018 30.06.2021 1 24.05.2022
SCA NO Due date
of filing
reply
Date of
reply:-
Date of
order
under
section
148A(d) and
Last date
for
issuance of
notice
under
section 148
notice
under
section
148:-
as per
surviving
time:-
6387/2023 09.06.2022 04.06.2022 29.07.2022 22/06/2022
5688/2023 06/06/2022 - 27/07/2022 27/06/2022
22260/2022 07/06/2022 06/07/2022 30/07/2022 14/06/2022
996/2023 11/06/2022 10/06/2022 19/07/2022 18/06/2022
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
68. It is apparent from the above details section beyond
time' Hon'ble Rajeev that impugned notice under 148 of the Act is
issued the period of 'surviving as per the direction of Apex Court
in case of Bansal (supra)and therefore, such notices would be
invalid notices.
69.The impugned notices issued under section 148 of the Act are
accordingly quashed and set aside being invalid having been issued
beyond the 'surviving time'. Accordingly, impugned orders passed
under section 148A(d) of the Act would also not survive and are
accordingly, quashed and set aside. Subsequent proceedings, if any,
undertaken by the respondent would not survive and are
also quashed and set aside.
70. Rule is made absolute to the aforesaid extent. No order as to
costs."
7 In the facts of the case, the respondent - Assessing
Officer has provided information pursuant to the directions
issued by the Apex Court in the case of Ashish Agarwal
(supra) on 28.05.2022 and therefore, considering 15 days' time to
file reply by the assessee, the due date would be 12.06.2022. The
petitioner has not filed any reply. The order under Section
148A(d) of the Act was issued on 31.07.2022. However,
considering the period of limitation, from the date of issuance of
notice under Section 148 read with TOLA, upto
30.06.2021, the limitation for issuance of notice under Section
148 of the Act applying the decision of the Apex Court in the
case of Ashish Agarwal (supra) as well as Rajeev Bansal (supra),
would be 09.06.2022 as original notice under Section 148 [now
148A(b) of the Act] was issued on 25.06.2021.
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
8. Learned Senior Standing Counsel Mr.Karan G. Sanghani has
verified the above dates and could not controvert the
same.
9. In view of above, the impugned order dated 31.07.2022
passed under Section 148A(d) of the Act, Notice issued under
Section 148 of the Act dated 31.07.2022 and consequent
reopening proceedings would be invalid as the said notice is
issued after 09.06.2022 as per the decision of the Apex Court in
the case of Ashish Agarwal (supra). Therefore, the impugned
notice having been issued beyond the 'surviving time' would be
invalid notice as held by the Apex Court in the case of Rajeev
Bansal (supra) in the following paragraph No.114 (g) and (h) of
the judgment:
"114. In view of the above discussion, we conclude that:
xxx
(g) The time during which the show-cause notices were deemed to
be stayed is from the date of issuance of the deemed notice
between April 1, 2021 and June 30, 2021 till the supply
of relevant information and material by the Assessing Officers to
the assessees in terms of the directions issued by this court in
Union of India v. Ashish Agarwal [[2022] 138 taxmann.com 64 /
286 Taxman 183 /[2022] 444 ITR 1; (2023) 1 SCC 617.], and the
period of two weeks allowed to the assessees to respond to the
show-cause notices; and
(h) The Assessing Officers were required to issue the reassessment
notice under section 148 of the new regime within the time limit
surviving under the Income-tax Act read with the Taxation and
other Laws (Relaxation and Amendment of Certain Provisions) Act,
2020. All notices issued beyond the surviving period are time
barred and liable to be set aside."
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C/SCA/12378/2026 JUDGMENT DATED: 19/10/2026
(GJHC240599832026)
10. In view of foregoing reasons, the present writ petition is
allowed. The impugned order passed under Section 148A(d) of
the Act dated 31.07.2022 and Notice issued under Section 148 of
the Act dated 31.07.2022 are hereby quashed and set aside
alongwith all the consequential proceedings. Rule is made
absolute to the aforesaid extent. Despite the pendency of appeal,
we have taken up this writ petition in view of setting aside of
the order passed by Apex Court in the case of Rajeev Bansal
(supra). Needless to state that, the appeal pending before the
Commissioner of Income Tax (Appeal) shall become infructuous in
light of the present order.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(VAIBHAVI D. NANAVATI,J)
Pradhyuman/12/
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